Summary: Mr X complained the Council failed to deliver his child’s Education, Health and Care Plan provision since February 2022. Mr X also complained the Council failed to complete the Education, Health and Care Plan reviews suitably. We found the Council provided most of the provision from the Education, Health and Care Plan. But, we found the Council failed to ensure some Occupational Therapy and Physiotherapy provision was provided. We found fault with the Council delaying for over 49 weeks outside the statutory timescales in producing an amended Education, Health and Care plan for Mr X’s child. This avoidable delay caused frustration and distress to Mr X, presented a barrier to Mr X appealing the Education, Health and Care Plan to the Tribunal and caused lost opportunity for Mr X’s child to have suitable up-to-date provision detailed in their Education, Health and Care Plan. The Council agreed to apologise to Mr X, pay him £500 for the injustice caused to him and £750 for the injustice caused to his child through its delays and £500 for the missed provision. The Council also agreed to provide guidance and training to staff about timescales for completing Education, Health and Care Plan reviews, issuing notification letters and about accurate record keeping. And, the Council agreed to ensure the full Occupational Therapy and Physiotherapy provisions are put in place for Mr X’s child.

The complaint

1. Mr X complained the Council failed to suitably deliver his child’s Education, Health and Care Plan provision since February 2022.
2. Mr X also complained the Council failed to meet the statutory timescales when completing the review of his child’s Education, Health and Care Plan following an annual review in June 2023.
3. Mr X says the Council also failed to suitably consider his input into the Education, Health and Care Plan reviews and Plans.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

9. I have not investigated Mr X’s complaint about matters before 5 September 2022.
10. This is because the Ombudsman can only investigate matters brought to our attention within 12 months. Mr X brought his complaint to the Ombudsman in March 2024. This meant, I could only investigate matters back to March 2023, unless there were good reasons to investigate matters before this date.
11. It is also of note that 5 September 2022 is the date the Council produced the amended Final Education, Health and Care Plan following Mr X taking his complaint to the Tribunal. The Ombudsman cannot investigate matters which have been considered by the Tribunal.
12. There is good reason for me to consider Mr X’s complaint back to 5 September 2022, beyond the normal 12 months of our investigation scope. This is because the 5 September 2022 is the date the Council became obliged to provide the Education, Health and Care Plan provision detailed in the Plan of the same date.
13. Any failure to deliver provision before 5 September 2022 was for provisions detailed in the previous Education, Health and Care Plan. Mr X would needed to have brought his complaint to the Ombudsman sooner for us to consider this.
14. I have ended my investigation from 2 September 2024. This is because the Ombudsman must give a council opportunity to address a complaint before the Ombudsman investigates. By ending our investigation on 2 September 2024 this allows us to address all matters up-to-date and create a cut off point at the start of the academic year 2024/2025. Should Mr X have any concerns about matters after this date, this would the subject of a new complaint with the Council.

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How I considered this complaint

15. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
16. Mr X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Education, Health and Care Plan Regulations

17. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
18. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
19. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Reviewing and Education, Health and Care Plan

20. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
21. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
22. Where a council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
23. The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay”. (SEN Code para 9.176)
24. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the final amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
25. In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
26. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

What happened

27. On 18 November 2021, the Council issued an EHC plan for Mr X’s child, who I shall refer to as Y.
28. The Council issued an amended EHC Plan for Y on 15 January 2022. Mr X appealed this EHC Plan to the SEND Tribunal seeking changes to Sections B and F.
29. The SEND Tribunal heard the appeal and instructed the Council to make changes to the EHC Plan. On 5 September 2022, the Council shared the amended EHC Plan for Y with Mr X with a letter confirming its intention to amend the EHC Plan. This EHC Plan detailed Y’s provision following instruction from the tribunal. Section F of this EHC Plan included specific provision:
• For Y’s school to use alternative communication techniques, have working knowledge of Speech and Language communication difficulties, multi-sensory communication strategies for Y and for Y to have opportunities to engage and learn with peers.
• Y’s school should also provide a high-level of 1:1 support for Y with daily provision of communication and interaction skills and daily attendance at a social communication and interaction programme.
• For Y to have Augmentative and Alternative Communication (AAC) equipment at home.
• Ongoing access to specialist equipment to help Y sit, stand and move around.
• The Speech and Language team should provide input for school staff and review Y’s progress termly.
• A Speech and Language Therapist to provide 4 direct 30-minute sessions for Y each term. And, an extra review once each term alongside the physiotherapist for one of Y’s disabilities.
• The Occupational Therapy Team to provide 4 school-based appointment per term for Y.
• A physiotherapist to provide 4 sessions per term for Y.
• An Occupational Therapist and physiotherapist to review Y’s school-based equipment and review Y’s programme termly. Following completion of the review the Occupational Therapist should provide a modelling sessions with Y's parents.
• Y to have access to a weekly swim class and once per half-term for the physiotherapist to work with Y in the pool.
30. On 29 June 2023, Y’s school held an annual review of Y’s EHC Plan. The school shared the report of this annual review with the Council on 28 August 2023.
31. Mr X complained to the Council on 22 September 2023. Mr X said:
• The Council has not confirmed its decision about Y’s EHC Plan following the annual review on 29 June 2023.
• The Council failed to attend the annual review meeting in June 2023.
• Many parts of Y’s EHC Plan were not being delivered including the 1:1 support, Occupational Therapy, Exercise programmes, Speech and Language Therapy sessions and annual reports.
32. The Council issued a Stage 1 complaint response on 16 October 2023. The Council promised to share the outcome of the annual review by 27 October 2023. The Council apologised for failing to attend the annual review and if Mr X felt Y’s EHC Plan provision was not being delivered as detailed in the EHC Plan.
33. Following Mr X asking for consideration of his complaint at Stage 2, the Council provided a Stage 2 complaint response on 7 November 2023. The Council said:
• It failed to share the outcome of the annual review process with Mr X or provide a Final EHC Plan following the annual review by 21 September 2023.
• It has not been able to address Mr X’s complaint about the lack of EHC Plan provision and would instead arrange a meeting to discuss how it will address this issue.
34. On 6 December 2023, the Council issued a draft amended EHC Plan for Y.
35. The Council arranged a co-production meeting with Mr X for 21 January 2024. The Council has no records of this meeting taking place and no records of the outcome or any agreed action.
36. On 4 July 2024, the Council held an annual review meeting for Y’s EHC Plan.
37. On 4 September 2024, the Council issued a notification to amend letter to Mr X advising of its intention to amend Y’s EHC Plan. The Council sent the amended Final EHC Plan to Mr X on 27 September 2024.

Analysis

Education, Health and Care Plan reviews

38. A council should complete a review of a child’s EHC Plan within 12 months of the latest notification letter sent to advise it will maintain or amend an EHC Plan.
39. Following the Tribunal hearing, the Council issued an amended Final EHC Plan alongside a letter confirming its intention to amend Y’s EHC Plan on 5 September 2022. This meant, the Council should complete a review of Y’s EHC Plan by 5 September 2023.
40. Y’s school arranged an annual review meeting for Y’s EHC Plan within suitable time, on 29 June 2023, to complete the annual review process before 5 September 2023. The Council did not attend this annual review meeting so had no control over when the school passed the documentation over to it. The Council had no duty to attend the meeting but allowing proceedings to drift out of the statutory timescales, by failing to obtain the information from the school, is fault by the Council.
41. The Council had four weeks from 29 June 2023 to confirm with Mr X its intention to maintain, amend or cease Y’s EHC Plan. The Council also had 12 weeks to produce the Final EHC Plan following the annual review meeting held on 29 June 2023. The Council failed to meet either of these timescales; this was fault.
42. The Council failed to issue Mr X with a Final EHC Plan following the annual review in 2023. Since this date, a further annual review meeting took place on 4 July 2024. Again, the Council had four weeks to issue its intention to amend, maintain or cease Y’s EHC Plan and 12 weeks to issue the Final EHC Plan.
43. The Council sent its intention to amend letter outside the four-week timescale. This was fault.
44. The Council had until 26 September 2024 to issue the Final EHC Plan. The Council sent the Final EHC Plan to Mr X on 27 September 2024. This was fault but did not present a significant injustice because the Council only missed the deadline by one day.
45. Overall, the Council has delayed by 49 weeks and five days, up to 27 September 2024, outside the statutory timescales in producing a Final EHC Plan following the annual review on 29 June 2023. These delays have caused an injustice to both Mr X and Y.
46. Delays in finalising Y’s EHC Plan has caused an injustice to Y through a failure to detail suitable up-to-date provision for Y in their EHC Plan. This has caused a lost opportunity for Y to access potentially more suitable EHC Plan provisions to meet their needs.
47. The delays caused distress and frustration for Mr X. Mr X has also expressed dissatisfaction with the Council’s recording of his input into Y’s annual reviews and EHC Plans. It is not the Ombudsman’s place to question the content of an EHC Plan, this is the role of the SEND Tribunal. By failing to finalise Y’s EHC Plan until 27 September 2024 this has prevented Mr X’s ability to appeal to the SEND Tribunal over the content of the EHC Plan. This is a further injustice to both Mr X, through added frustration, and Y through the inability to appeal potentially unsuitable provisions.
48. The Council should apologise to Mr X and provide goodwill payments to him for both the injustice caused to him and Y. Where we decide it is appropriate, the Ombudsman will normally recommend a remedy payment for distress of up to £500 as a goodwill award. We can recommend higher payments to remedy distress where we decide it was especially severe and/or prolonged.
49. In this circumstance, the delay by the Council causing distress and frustration to Mr X was just under a year outside the statutory timescales. This would justify an award at the top end of our normal goodwill awards. A delay of over one year could be considered prolonged but the delay for Mr X falls slightly under a year. As such, the Council should pay Mr X £500 for his distress and frustration. While the delay was not prolonged, I would consider this length of delay caused a more severe impact on Y. This is because of the lost opportunity to update his EHC Plan provisions for nearly a year and the lost opportunity to appeal the EHC Plan to the SEND Tribunal. The Council should award £750 for the injustice caused to Y.
50. Since the Council has now produced a Final EHC Plan for Y, Mr X can engage his appeal rights over the content of the EHC Plan should he so choose.
51. The Council should provide training and guidance to staff about the importance of adhering to the statutory timescales in completing EHC Plan reviews and issuing the relevant notification letters as part of this process.

Education, Health and Care Plan provision

52. The Council has a duty to ensure a child receives the provision detailed in their EHC Plan. As explained in paragraph 19, the Ombudsman does not expect the Council to keep a watching brief to ensure all provision from an EHC Plan is delivered. However, the Council should keep such matters under review.
53. The Council is also only expected to deliver the EHC Plan provision from the latest Final EHC Plan. This means, the Council only has a duty to ensure Y is receiving the EHC Plan provision from the 5 September 2022 EHC Plan. The Council is not required to provide any provisions from draft EHC Plans until the Council produces a Final EHC Plan. I have already addressed the fault for delays in finalising Y’s EHC Plan in the section titled “Education, Health and Care Plan reviews”.
54. The Council has provided evidence to the Ombudsman of it fulfilling the Occupational Therapy sessions, Speech and Language Therapy sessions and joint sessions since September 2022. The Council has shown that every session took place in line with Y’s EHC Plan through information from these relevant services. The only anomaly to this was when Occupational Therapy provided 5 sessions in the Spring term of 2024 and 3 sessions in the Summer term of 2024, rather than 4 in each. However, this does not present an injustice to Y because Y still received the full number of sessions.
55. The Council has also evidenced the Occupational Therapy team and Speech and Language Therapy team provided termly input for school staff, termly reviews of the relevant programmes and completed relevant reviews of Y’s equipment in line with the EHC Plan. The only exception to this was the failure of the Occupational Therapist to document a review of Y’s equipment in the Spring term of 2023. However, this has not caused a significant injustice to Y as it completed checks in the two terms either side of this date.
56. While the Council had provided the Occupational Therapy and Physiotherapy provisions detailed above, the Occupational Therapists and Physiotherapists did not provide a report for Y’s annual reviews. As of 2024, the latest report for Occupational Therapy for Y is from 2022 and Physiotherapy from 2021. Additionally, the Occupational Therapist has not provided modelling sessions with Y’s parents following the termly reviews, as detailed in the EHC Plan. The evidence also shows minimal communication with Y’s parents from both the Occupational Therapist and Physiotherapist, despite the requirement for contact detailed in the EHC Plan. This has prompted Mr X’s concerns about the provision of this service. The lack of this provision from the EHC Plan was fault.
57. The December 2023 draft EHC Plan produced by the Council, with information from the annual review meeting held in June 2023, detailed the school’s input on the provision it was making available for Y. This draft EHC Plan confirmed Y was accessing daily routines and had access to various equipment and toys to meet his needs. The draft EHC Plan confirmed Y was engaging in Occupational Therapy programmes and physiotherapy programmes by detailing the progress Y had made. This draft EHC Plan also confirmed Y had an assigned member of staff on a 1:1 basis and that Y had access to an AAC device.
58. As part of the annual review completed in July 2024, Y’s school provided input about the provisions it had delivered over the last 12 months. Y’s school detailed that Y has had access to a bespoke educational package as detailed in the EHC Plan. The school also confirmed it had been delivering programmes to Y as detailed in the EHC Plan and using techniques suggested in the EHC Plan.
59. Y’s school also confirmed it had made equipment available to Y in school as detailed in the EHC Plan. Y’s school’s input also confirmed Y had been accessing his daily physio and Occupational Therapy programmes and attending his swimming programme, including supported sessions with the physiotherapist.
60. A Physical and Sensory support record report completed in 2024 of Y by a Vision Impairment adviser also confirmed Y had access to an AAC device as detailed in the EHC Plan. It also confirmed Y's classroom space was quiet and suitable for Y's needs and Y had access to relevant equipment and support as needed.
61. The EHC Plan review confirmed Y was engaging with physiotherapy sessions and detailed the support provided Occupational Therapy and Speech and Language Therapy.
62. The Council has demonstrated that it has kept a watching brief of Y’s EHC Plan provision as part of the annual review processes in 2023 and 2024. While the Council has not completed the annual review processes in either year, it has had sight of the EHC Plan provisions made available to Y. The evidence shows Y has had access to most of the provisions detailed in the EHC Plan from 5 September 2022 to 2 September 2024 other than the provision detailed in paragraph 56.
63. While I do not find fault with the Council making most of the provisions available to Y, I do have concerns about how the Council investigated Mr X’s complaint about provisions not being in place. Within both the Council’s Stage 1 and Stage 2 complaint responses it failed to investigate if Y had access to the EHC Plan provisions. The Council said it would arrange a co-production meeting to investigate this instead. While the Council claims a meeting was scheduled for 21 January 2024, there is no evidence of this meeting taking place or any agreed actions or outcomes of this meeting. The Council failed to investigate Mr X’s concerns suitably; this was fault. Is also of note that while the evidence shows sessions took place with the Occupational Therapy and Physiotherapy teams, the length of these sessions are often not noted. This creates ambiguity about the fulfilment of EHC Plan provisions. The Council should apologise to Mr X and provide training to staff, and issues reminders to relevant therapists services, about the importance of accurate record keeping.

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Agreed action

64. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology to Mr X and pay him £500 for the avoidable distress, frustration and barrier to him exercising his appeal rights to the SEND Tribunal through its delays of 49 weeks and 4 days in producing a Final EHC Plan for Y following the annual review meeting in June 2023. The Council should also apologise to Mr X for the poor handling of his complaint and failure to suitably investigate his concerns.
• Provide a payment to Mr X of £750 for the lost opportunity for Y in having suitable up-to-date provision detailing in their EHC Plan caused through the avoidable delay of 49 weeks and 4 days in producing a Final EHC Plan for Y following the annual review meeting in June 2023.
• Provide a payment to Mr X of £500 for the failure to deliver all aspects of Y’s Occupational Therapy and Physiotherapy support detailed in their EHC Plan from September 2022 to the date of this decision.
• Ensure the Occupational Therapy team and Physiotherapy team are providing the full provisions detailed in Y’s EHC Plan. This should be done by reminding the relevant teams of their need to provide modelling sessions and communication with Mr X, in line with Y’s EHC Plan, and the Council to request annual reports from both services for review as part of the EHC Plan review process.
65. Within three months of the Ombudsman’s final decision the Council should:
• Provide training and guidance to staff about the importance of adhering to the statutory timescales in completing EHC Plan reviews and issuing the relevant notification letters as part of this process.
• Provide training to staff about the importance of accurate record keeping. The Council should also remind its Occupational Therapist teams and Physiotherapist teams about the importance of keeping records of the lengths of visits where timescales are specified in the EHC Plan.
66. The Council should provide us with evidence it has complied with the above actions.

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Final decision

67. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman